New York City Department of Education, Impartial Hearing Decision

NEW YORK CITY DEPARTMENT OF EDUCATION

______________________________________________________________________________

STUDENT by and through his Parent(s),^[1]

Petitioners,

FINDINGS OF FACT AND DECISION

Case No: 217955

-against-

NEW YORK CITY DOE, CSE REGION [REDACTED] James Polk, Esq.

Respondent. Hearing Officer

______________________________________________________________________________

INTRODUCTION

This matter comes to the undersigned Hearing Officer on Petitioner’s Notice of Due Process Complaint, filed on or about September 19, 2021 (hereinafter, “Complaint”). PA.^[2] I was appointed on February 22, 2022. No known response was filed to the complaint. A prehearing conference in this matter was scheduled for, and held on, April 6, 2022.

The Petitioner’s were represented by REDACTED, Esq. and the Respondents were unrepresented at the hearing. The Actual Record Close Date was November 20, 2022

A hearing was held on September 22, 2022. Exhibits were pre-marked and the Petitioner entered into evidence exhibits A-I. The IHO entered into evidence Exhibits I. The Respondent was not present, did not present any evidence or enter any exhibits. Petitioner called two (2) witness, the Student’s Parent and the Agency Director both of whom testified by affidavit. The Respondent did not call any witnesses.

JURISDICTION

The due process hearing was held, and a decision in this matter is being rendered, pursuant to the Individuals with Disabilities Education Act (hereinafter, “IDEA”),^[3] 20 U.S.C. § 1400 et seq., and its implementing regulations, 34 C.F.R. § 300 et seq., and the New York State Education Law, Educ. Law Art. 89 § 4404 et seq., and its implementing regulations, 8 NYCRR § Part 200.

ISSUES

The issues to be determined are as follows:

• • Whether the Respondent Denied the Student a Free and Appropriate Public Education (hereinafter “FAPE”) for the 2021-22 school year because the Department of Education cannot implement the student’s IEP or provide the therapeutic environment he requires to access the curriculum.

Petitioner is seeking relief in the form of an order that requires the Respondent to fund SEIT/SETSS and Related Services.

FINDINGS OF FACT

After considering all the evidence^[4], the Findings of Fact are as Follows:

• • The facts as provided are somewhat limited. The Student per his parent struggles in many academic and social/emotional areas. As a result he requires extra assistance. The specific services can be found in his IEP dated May 9, 2019 and found in evidence in Petitioner’s B.
• • At a CSE “turning 5” IEP meeting the Parent was under the belief that the Services that had included SEIT as well as Occupational Therapy, Physical Therapy and Speech Language Therapy would all remain the same. However, it appears that the SEIT was removed. The Parent indicated that the reason for this was unclear to her. (See Exhibit E). As a result in September of 2019 the Parent submitted a 10 day notice informing the District that she was implementing a program based on the previous IEP. Per her testimony the District did not respond.
• • The Parent then began services for the Student with the Private Agency which was able to provide the services not provided and removed from the Student’s IEP. The Parent testified that paying for such services would constitute a financial hardship and that she would not be able to afford such without financial assistance.
• • The Agency Director testified as well. She indicated that she oversees the Special Education Teachers at the agency and determines whether the appropriate services are being provided. In addition she testified as to the intake process for each student (See Exhibit F). She discussed her familiarity with the Student, the nature of the services provided and the qualifications of the teachers providing the specific services to the Student.
• • In addition she testified as to the cost of said services.
• • It should be noted that both affidavits were under the penalty of perjury and were notarized for identification purposes.

CONCLUSIONS OF LAW AND DISCUSSIONS

Based upon the above Findings of Fact, the arguments of counsel, as well as this Hearing Officer’s own legal research, the Conclusions of Law are as follows:

The Student was Denied a Free and Appropriate Public Education for the 2021-22 School Year Because the Department of Education could not implement his IEP by providing a SETSS Provider.

In New York, the Local Educational Agency or Respondent has the burden of proof, persuasion and production on allegations of denial of a free and appropriate public education. N.Y. Educ. Law Art. 89 § 4404(c). Given that no evidence was presented by the Respondent and no evidence presented by the Petitioner was challenged it is easy to conclude that they did not meet that burden.

In determining a Free and Appropriate Education the Supreme Court has determined that an IEP must be (1) formulated in accordance with the procedural requirements of the IDEA; and (2) “reasonably calculated to enable the child to obtain educational benefit. See Bd. Of Educ. v. Rowley, 458 U.S. 176 (1982). This was further clarified to indicate that the IEP must be reasonably calculated to enable the student to make progress appropriate in light of his/her circumstances. Endrew F. v. Douglas County School District, 137 S. Ct. 988 (2017). The Endrew F. decision constituted something of a watershed moment because it served the dual purpose of refocusing the first prong of the Rowley test while requiring simply more than de minimus progress to be shown by the school districts.

The only IEP in evidence in the present case can be found in Petitioner’s Exhibit B. The Respondent simply does not challenge the alteration at a later IEP meeting that was alleged by the Parent in the removal of the SEIT services as required by the previous IEP. Given that this prong is a burden of the Respondent, the only conclusion that can be drawn is that they denied the Student a free and appropriate public education by denying the SEIT services at the later IEP meeting.

The Unliateral Placement of the Student is Proper and Appropriate and the Parent is Entitled to Related Services Payments for the 2021-22 School Year.

In situations where a child has been denied a free and appropriate public education, one such remedy is tuition reimbursement when a placement in a private school has become necessary. Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 (1993); Sch. Comm. Of Burlington v. Dep’t of Educ., 471 U.S. 359 (1985). This analysis extends to the direct payment of SETSS at an enhanced rate when that may cure the violation of FAPE. “Indeed where the equities call for it, direct payment [of services] fits comfortably within the Burlington-Carter framework.” E.M. v. New York City Dep’t of Educ., 758 F.3d 442, 453 (2d Cir. 2014); See also Mr. and Mrs. A. v New York City Dep’t of Educ., 769 F. Supp. 2d 403, 430 (S.D.N.Y. 2011); Application of a Student with a Disability, Appeal No. 20-122. In determining whether to grant tuition reimbursement, a hearing officer must therefore apply the same multi-prong Burlington-Carter test.

First, it is necessary to consider whether a free and appropriate education was made available in the first place. Burlington, Id. at 369. This is done by determining the appropriateness of the IEP by applying the Rowley/Endrew F. test and then determining the Public School’s actions in light of the IEP (or IESP). A lengthy analysis is available earlier in this decision and brevity dictates that repetition is not necessary. Suffice it to say that the Petitioner’s claim for direct payment of services satisfies this first prong.

Next, it must be determined if the direct payment for services is “appropriate” and/or “proper”. See Burlington, Id. at 369; and Carter, Id. at 15. To establish this the Parent must, “demonstrate that the placement [or services] provides educational instruction specifically designed to meet the unique needs of a [special needs]^[5] child, supported by such services as are necessary to permit the child to benefit from instruction.” (emphasis added) Frank G. v. Bd. Of Educ., 459 F.3d 356, 365 (2d Cir. 2006); See also Gagliardo v. Arlington, 489 F.3d 105 (2d. Cir. 2007). Thus, we must determine if the services in dispute are providing the proper educational instruction for the Student in the present case.

During the hearing, the Agency Director discussed the types of services that are provided. He discussed the type that the student is receiving and the type that he will continue to receive should he be able to continue. These appear to be the types of services that the Department of Education was required to provide in the Student’s May 2019 IEP. These are factors utilized to determine the appropriateness of a unilateral placement in IDEA cases. See B.R. v. NYC Dep’t of Educ., 910 F. Supp.2d 670 (SDNY 2012). Thus, it seems appropriate to utilize them in determining the appropriateness of direct payment for services. Moreover, this program was unchallenged by the Respondent. It does appear that the program is appropriate to meet the unique needs of the Student and is appropriate under the Carter/Burlington standard.

Finally, it is necessary to balance the equitable factors found in 20 U.S.C. § 1412(a)(10)(C)(iii). Some of these statutory factors are so clearly limited to the placement of a student in a private educational setting that they don’t have clear bearing here but some must be looked at in a SETSS/Direct payment case.

The actions of the Parent are one such consideration and the hearing officer must determine if they were unreasonable. 20 U.S.C. § 1412(a)(10)(C)(iii)(III). The Respondent made a strong point that they parents actions were “unreasonable” but they simply cannot establish this case. The Petitioner did submit an affidavit indicating that they attended the IEP meeting. Although the affidavit is limited to a certain extent, there is nothing that can be inferred that their behavior was unreasonable under the aforementioned legal standard.

There are two additional equitable factors that are not specifically mentioned in 20 U.S.C. § 1412 Id. but must be considered. One of these is whether the cost of the private placement, or in the present case services, is unreasonable. See Carter Id. at 16. The cost of the related services was testified to by the Program Administrator. This doesn’t seem a particularly onerous amount for a significant service and decisions have been upheld for similar even slightly less amounts so long as sufficient record has been established. Application of a Student with a Disability, Appeal No. 20-122. In addition, the Respondent’s failure to put on a case prejudiced this claim significantly. There is no testimony as to the cost of related programs that could show less-expensive equitable alternatives that could have been provided.

The final equitable factor to be determined is whether there was a lack of parental cooperation with the school district. See Werner v. Clarkstown Cent. Sch. Dist., 363 F.Supp.2d 656 (S.D.N.Y. 2005). Here again the Respondent simply cannot establish this case. It has been stated at many points in this decision and brevity again dictates that it need not be repeated but the parents simply cooperated in the limited manner required in this matter.

It is clear from a full analysis of the Burlington/Carter standard that the Student was denied a free and appropriate education and that the balance of equities favors the parents. As a result the parent is entitled to direct payment of SETSS for the 2021-22 school year as well as reimbursement of monies already paid if any.

ORDER

Based upon the Findings of Fact and Conclusions of Law, it is hereby:

• • IT IS ORDERED that the RESPONDENT pay for SEIT services in Yiddish for 5 periods per week on a 2:1 basis with the Private Agency;
• • IT IS FURTHER ORDERED that the RESPONDENT pay for Speech Language Therapy in Yiddish 2 times per week for 30 minutes with the Private Agency;
• • IT IS FURTHER ORDERED that the RESPONDENT pay for Occupational Therapy in English 2 times per week for 30 minutes with the Private Agency;
• • IT IS FURTHER ORDERED that the RESPONDENT pay for Physical Therapy in English 2 times per week for 30 minutes with the Private Agency.

SO ORDERED

DATED: November 22, 2022

NOTICE OF RIGHT TO APPEAL

Within 40 days of the date of this decision, the parent and/or the Public School District has a right to appeal the decision to a State Review Officer (SRO) of the New York State Education Department under section 4404 of the Education Law of the Individuals with Disabilities Education Act.

If either party plans to appeal the decision, a notice of intention to seek review shall be personally served upon the opposing party no later than 25 days after the date of decision sought to be reviewed.

An appealing party’s request for review shall be personally served upon the opposing party within 40 days from the date of the decision sought to be reviewed. An appealing party shall file the notice of intention to seek review, notice of request for review, and proof of service with the Office of State Review of the State Education Department within two days after the service of the request for review is complete. The rules of procedure for appeals before an SRO are found in Part 279 of the Regulations of the Commissioner of Education. A copy of the rules in Part 279 and model forms are available at http://www.sro.nysed.gov.

Footnotes

[1] Personally identifiable information is attached as Appendix A to this decision and must be removed prior to public distribution.

[2] Petitioner’s Exhibits will be referred to as “P” followed by the exhibit letter and Respondent Exhibits will be referred to as “R” followed by the exhibit number. Impartial Hearing Officer’s Exhibits will be marked “I” followed by the exhibit Roman numeral. When citing any exhibit, the third range represents the page number within the referenced exhibit.

[3] In 2004, Congress reauthorized the Individuals with Disabilities Education Act as the Individuals with Disabilities Education Improvement Act. See Pub. L. No. 108-446, 118 Stat. 2647 (Dec. 3, 2004), effective July 1, 2005. The amendments provide that the short title of the reauthorized and amended provisions remains the Individuals with Disabilities Education Act. See Pub. L. 108-446, § 101, 118 Stat. at 2647; 20 U.S.C. § 1400 (2006) (“This chapter may be cited as the ‘Individuals with Disabilities Education Act.”).

[4] As stated previously, the Respondent called no witnesses, asked no questions and presented no evidence so the findings of fact are based entirely upon the case presented by the Petitioner.

[5] I bracket edited the actual quoted word because the term quoted is no longer favored nomenclature and could be interpreted as derogatory.